COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Candir, 2008 ONCA 773

DATE: 20081121

DOCKET: C47434

Borins J.A. (In Chambers)

BETWEEN:

Her Majesty the Queen

Respondent

and

Erhun Candir

Appellant (Applicant)

Counsel:

Delmar Doucette for the applicant

Susan Ficek for the respondent

[1] Factums in the Court of Appeal are not to exceed 30 pages. However, in an appropriate case, the court may grant leave to file a longer factum where compelling reasons are presented as to why the party cannot present his or her case in 30 pages. Thus, exceptional circumstances must exist before leave will be granted to file a factum longer than 30 pages.

[2] In this case, the appellant appeals his conviction for first degree murder. He has raised seven grounds of appeal. The trial took approximately eight weeks during which 47 Crown witnesses testified. It is said that the case was one of circumstantial evidence. Counsel for the appellant seeks leave to file an 86 page factum. He claims that “a shorter factum cannot be filed without jeopardizing the ability of the appellant to argue his appeal and the ability of the court to properly decide the case”. He adds that “any further compression of the facts or argument would be detrimental to the presentation and understanding of the appeal”.

[3] I have read the proposed factum. In my view, it is far too long. As the grounds for appeal are not fact based, a 30 page recitation of the facts is unnecessary. Moreover, 54 pages to deal with seven legal issues is excessive. With rare exceptions, it has been my experience that the longer a factum, the more difficult it is to make an effective argument. It is to be remembered that factums are to contain “a concise summary of the facts relevant to the issues on appeal” and “a statement of each issue raised, immediately followed by a “concise argument” and a reference to supporting authority. Unfortunately, the proposed factum does not adhere to these guidelines. It appears to me that an effective factum of 40 pages or less could be prepared.

[4] A 30 page factum has been the norm in this court for decades. This was the length chosen because it was felt that in almost every appeal, 30 pages would be adequate to permit a party to present his or her case or to respond. In the experience of the court, this has worked out well. Indeed, many effective factums are less than 30 pages. As I have mentioned, on rare occasions a compelling reason will enable the court to permit a party to file a longer factum. I appreciate that effective factum writing is a skill that requires practice and that it is difficult to prepare a factum where there is a page limit.

[5] This motion began as a contested motion. It was only after I received the Crown’s consent to extend the appellant’s factum to 86 pages, provided it could also file an 86 page factum, that I decided to prepare these reasons. No draft factum was presented by the Crown. Unfortunately, it is not an uncommon practice where one party requests leave to file a long factum that the opposing counsel consents to the request provided it can file a factum of the same length. This is not helpful. Counsel must recognize that even though they may consent to the filing of factums that exceed 30 pages, it is the court that has the final say.

[6] Accordingly, I would grant leave to the appellant to file a factum not to exceed 40 pages. The Crown has not made out a case for filing a factum that exceeds 30 pages.

RELEASED: November 21, 2008

“S. Borins J.A.”